Alito’s Face

Stephen Breyer and John Paul Stevens almost always vote together on the Supreme Court, but they are polar opposites when it comes to the State of the Union address. Breyer always attends, believing that the Court needs to show the country that the Justices are part of the government, if an independent and co-equal branch. Stevens, on the other hand, never goes to the speech, on the theory that the independence of the judiciary requires a position of detachment for the Justices, physical and otherwise. It’s likely that Samuel Alito is spending some time today weighing these alternative views a little more carefully.

That’s because the cameras caught Alito giving an unusually demonstrative response to President Obama’s speech last night. It came after Obama said this: “Last week, the Supreme Court reversed a century of law to open the floodgates for special interests—including foreign corporations—to spend without limit in our elections.” In the audience, Alito could be seen shaking his head in response and saying, it seemed, “Not true, not true.”

There’s a big issue and a small issue here. The first concerns the specific nature of the dispute, about the Court’s ruling in Citizens United v. FEC, In that five-to-four decision, written by Justice Anthony Kennedy and joined by Alito, the Court held that corporations, labor unions, and other organizations have the right under the First Amendment to spend unlimited amounts of money to influence the outcomes of elections. Obama may have been overstating the point when he said foreign companies now had the same unlimited rights to participate in our elections. The Court’s opinion carefully said it was not deciding the issue with regard to foreign entities. So the Court may give the green light to these foreign companies—but it hasn’t done so yet. In time, though, Congress will or will not pass a law to revive the limits on corporate spending, and the Court will or will not reject that effort as well.

The larger issue raised by Alito’s pouty face goes to the place of the Court in American life. In public, and especially in confirmation hearings, the Justices try to portray themselves as Olympian figures, removed from the hurly burly of politics. In Chief Justice Roberts’ famous (now mostly infamous) phrase at his confirmation hearing, the Justices are like baseball umpires, who do nothing more than call balls and strikes. But that’s not true—and it never has been true. (I discussed this issue in my Profile of Roberts.) The Justices have strong political views, which have powerful impacts on how they do their jobs. Alito performed the public service of making this point clearer for a national audience.

What makes Alito’s reaction even more delicious is that it’s further evidence that the Justice just can’t stand Obama. As a Senator, Obama voted against Alito’s confirmation, which the Justice does not seem to have forgotten. When the President-elect Obama made a courtesy call on the Justices shortly before his inauguration last year, Alito was the only member of the Court not to attend. (Obama voted against Roberts, too, but the Chief Justice managed to spare the time to welcome Obama.) The first law that Obama signed as President was the Lilly Ledbetter Act—which reversed a decision by the Supreme Court that had erected new barriers to plaintiffs filing employment discrimination cases. The author of that now-overruled decision? Samuel Alito. These two guys have a history.

And now everyone knows it. And for that reason, then, I don’t begrudge Alito his grimace. He was just being honest. Alito’s role in that room—and his place at the Court—is no different from that of the Republican members of Congress; both are dedicated political adversaries of the President. The camera—and the Justice—didn’t lie.